Expand the Supreme Court? Senate Democrats are holding out, and activists are livid

WASHINGTON — Support for expanding the size of the Supreme Court continues growing at all levels of the Democratic Party.

Except one crucial one: the U.S. Senate — an institution brimming with elderly institutionalists who are about to hear an earful from those who want to add justices in a bid to pull the current court’s ideological tilt from the right back toward the center. Abortion, voting, guns and LGBTQ issues are at the top of their minds.

“We want to make sure that we are bringing the real-life impact on our patients and the people who are most impacted, bringing those stories forward for senators in 2024 and beyond,” Jacqueline Ayers, Planned Parenthood’s senior vice president for policy, campaigns and advocacy, told Raw Story. “As advocates, our role is going to be continuing to make sure that we're pushing the conversation forward.”

In a sea change, themajority of Democratic voters,dozens of grassroots organizations and many House Democrats, including constitutional lawyer Rep. Jamie Raskin (D-MD), are now pushing to expand the current nine-member Supreme Court by four seats.

Instead, in the wake of recent reports from ProPublica revealing billionaire donors lavished Justices Clarence Thomas and Samuel Alito with free gifts and lodging, the Senate Judiciary Committee is scheduled this week to consider reforms that would force justices to adopt a code of ethics and enable everyday Americans to lodge formal complaints against members of the high court.

It’s not nearly enough for some.

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While advocates, like Demand Justice co-founder Christopher Kang, are praising Whitehouse and Senate Judiciary Chairman Dick Durbin (D-IL) for “finally seeing Congress has a role and it needs to assert itself” Kang says increased disclosure alone falls short.

“I do think that at the end of the day, forcing Clarence Thomas to fill out more paperwork and disclose what trips he’s going on is not going to solve the problem of the Supreme Court,” Kang told Raw Story.

The court’s 2022 Dobbs decision that upended Roe v. Wade was a wakeup call to many Democrats and independents, but these advocates say the problem is deeper and wider. Kang says the Supreme Court has all but barred Congress from re-authorizing the Voting Rights Act, overturned local gun reform efforts, ended affirmative action and blocked student debt relief for 43 million Americans.

“The court is inserting itself and taking power away from the other two branches of government, and its excuse is ‘separation of powers,’ and I think that that has been also the excuse they’ve been using around ethics reform,” Kang said. “I think the first step is ethics, but then that naturally leads to even more institutionalist Democrats in Congress coming around to saying that we also need to reassert the balance between the branches of government by expanding the court.”

‘Fresh leadership’

Demand Justice is far from alone. The group has more than 65 allies among federally elected officials for expanding the size of the Supreme Court now occupying historically stuffy offices on these slave-built Capitol grounds, but only three of them are senators.

“We are an archaic institution with tradition that is often discriminatory entrenched in how we operate, so it takes the strongest crowbar imaginable to move people,” Rep. Jamaal Bowman (D-NY) told Raw Story.

The American people are crying out for “fresh voices, new fresh leadership,” according to Bowman, who argues fresh leaders need freshened up institutions.

“We are a more diverse, complex, larger country than we've ever been. So we need to look at everything with fresh eyes, especially the Supreme Court,” Bowman said. “Seven-thousand cases are submitted to the Supreme Court every year, they hear 80 of them. They're not responding to the American people, just in terms of a numbers perspective.”

As with all things, the progressive movement is far from monolithic, even in Congress. President Joe Biden was “Senator Biden” for his first 36 years in Washington and remains an institutionalist’s institutionalist — and a court-packing skeptic — which is why Rep. Alexandria Ocasio-Cortez (D-NY) doesn’t think expanding the Supreme Court should be the party’s top priority.

“Personally, while I am supportive of expanding the court, I think we should be focusing on where there's more immediate possibility,” Ocasio-Cortez told Raw Story.

Ocasio-Cortez says as long as Biden is in the White House and Democrats control the Senate, the party’s main focus needs to be making the case to the American people.

“I think it'll be a lot easier to kind of ramp up activity on the Judiciary Committee, for example, in securing further investigation into the court’s misconduct than it is to try to get dozens of senators to agree to expanding the court when the president’s already spoken out against it,” Ocasio-Cortez said.

SCOTUS ethics reform ‘possible’

That’s in line with what Senate Democrats – even over Republican cries of, “foul!” – are attempting as they move ahead with ethics reform this week.

“What we're trying to do is to proceed within the realm of the possible,” Sen. Sheldon Whitehouse (D-RI), the sponsor of the reform package, told Raw Story. “The key step is to get the facts before there are people, and that will help determine the aperture for ambition.”

Some Senate Democrats are open to it, but they say now isn't the time.

“We've contemplated it for years. To me, what seems the most urgent is an enforceable code of ethics at the Supreme Court. It's not partisan – just long overdue,” Sen. Alex Padilla (D-CA) told Raw Story.

Many longtime Democrats, such as Sen. Tom Carper (D-DE), have never even considered expanding the court.

“No. A lot of people have contemplated it over the years, including FDR,” Carper told Raw Story. “The problem here is the lack of ethical guidelines and the failure to comply with what I think are common sense, reasonable guidelines.”

Senate Democrats are going by the old Washington playbook, though, according to the grassroots and their progressive allies in Congress who accuse Sen. Mitch McConnell (R-KY) of burning that playbook when he was majority leader.

While AOC and others will be making the case for a corrupt court on cable, social media and in-person, other progressives expect senators to hear calls to expand the court coming from all levels of the party soon.

“When we are able to get local elected [officials] and community leaders and people on the ground, those are the ones that push up,” Rep. Cori Bush (D-MO) told Raw Story. “They're the ones that are mobilizing every day and they're the ones that are reaching out in those communities. So, hopefully, pinpointing those Democrats that we really want to get on our side right now, hopefully, some of the effort they'll be looking at.”

The grassroots doesn’t just want Democrats to see their efforts – they’re set on making them feel their presence, displeasure and pain.

‘We are definitely coordinating’

No need for a new playbook, either. It’s worked before.

“Every event that Elizabeth Warren was at – you know, actually, every Dem candidate – we had folks there asking questions about expansion,” Julia Peter, co-director of advocacy and mobilization at the Center for Popular Democracy, told Raw Story. “The folks in Iowa, most of them either lived in Iowa or the Midwest and were traveling in for campaign events. Same for New Hampshire, South Carolina, etc.”

In 2018, the Center for Popular Democracy started calling for court expansion. Sen. Elizabeth Warren (D-MA) opposed Supreme Court expansion during her presidential primary bid in 2020. The following year, she joined the grassroots she’d heard so much from on the trail and backed an expansion plan. Warren knows her colleagues won’t be able to hold out forever.

“The Senate is full of people who are elected, and that is the ultimate accountability. As more people across this country become more alarmed about the Supreme Court, we'll see more movement in the U.S. Senate,” Warren told Raw Story.

Warren is still a lonely voice calling out in the wilderness. Sens. Tina Smith (D-MN) and Ed Markey (D-MA) are her allies. They’re all bullishly – naively, to critics both inside and outside of the Democratic Party – optimistic, if in their muted-senatorial way.

“Piece by piece we’re building a powerful coalition of groups that are going to be demanding change,” Markey told Raw Story. “Dobbs is just a preview of coming atrocities and each new judicial atrocity is gonna create a demand that we expand the court. And so, it will happen. It’s inextricable, it’s inevitable that we will get many more members calling for an expansion.”

The coalition is increasingly optimistic, even if they know they’re still laying the groundwork ahead of 2024 and beyond.

In May, Markey, Warren and Smith, along with Reps. Hank Johnson (D-GA), Adam Schiff (D-CA) and Cori Bush (D-MO), introduced the Judiciary Act of 2023, which would expand the Supreme Court’s membership from nine justices to 13 justices. Advocates expect a little pressure to go a long way.

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“Elizabeth Warren being such a huge champion on the issue really happened fast, and I do think it was the grassroots push,” Peter said. “But it wasn’t a lot. Sometimes people overestimate these things, and I don’t think that building momentum in the Senate is unachievable. And I do expect in the next year to get a lot more cosigners on that bill.”

This time, it’s not one progressive group here and a fringe-left professor over there – it’s a 40-plus coalition of advocacy groups are coming together, including the likes of Planned Parenthood, NARAL, National Action Network, Color of Change, Latino Victory andmore than a dozen gun reform advocacy groups.

“We are definitely coordinating,” Peter said, though she and the others say there’s nothing top-down about the effort. “The grassroots movement is growing. In a lot of ways, the Supreme Court is making it easier and easier. With every egregious decision that comes, more people are paying attention.”

In just more than a week, on July 24 and July 25, advocates from over a dozen states are taking part in a lobby day on Capitol Hill on voting access. Voting rights come through the Supreme Court.

“We’re also going to focus on the freedom to vote, but The Judiciary Act will be a big topic in all of those meetings,” Peter said.

Then, during Congress’ annual August recess – a hallowed time for politicians and advocates alike – they plan to pressure other Democrats, especially Senate Majority Leader Chuck Schumer (D-NY), House Minority Leader Hakeem Jeffries (D-NY) and others.

“We want to pressure Dem leadership. We are looking to Schumer and Jefferies to first endorse, and then take this on,” Peter told Raw Story. “I don’t know if we’re ready to say too much, but we’ve got some big stuff planned over August recess kind of targeting them on expansion. So, I do think that’s a big piece of it.”